Euthanasia

Euthanasia is a deliberate act undertaken by one person with the intention of ending the life of another person to relieve that person’s suffering where that act is the cause of death.

What is the difference between assisted suicide and euthanasia?

Assisted suicide and euthanasia are different. Assisted suicide is providing another with the knowledge or means to intentionally end his or her own life; euthanasia is deliberate action undertaken by one person with the intention of ending the life of another person to relieve that person’s suffering where that act is the cause of death. An example of assisted suicide is a physician who prescribes barbiturates to a patient with advanced ALS who uses the drugs to kill herself. An example of euthanasia is a physician who administers a combination of a sedative, a barbiturate, and a neuromuscular block to a man suffering from advanced spinal muscular atrophy with the intention of ending his life in order to relieve the pain and suffering caused by his condition where the barbiturates cause death.

Is euthanasia legal in Canada?

On June 17, 2016, new federal legislation came into force creating a regulatory framework for medical assistance in dying in Canada. Under this legislation, medical assistance in dying is legal if the eligibility criteria are met and the procedural safeguards are followed. The eligibility criteria are as follows:

241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be

eligible — for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological

suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable;

and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

The key procedural safeguards are as follows:

(3) Before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must

(a) be of the opinion that the person meets all of the criteria set out in subsection (1);

(b) ensure that the person’s request for medical assistance in dying was

(i) made in writing and signed and dated by the person or by another person under subsection (4),

and

(ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that

the person has a grievous and irremediable medical condition;

(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) — before two independent witnesses who then also signed and dated the request;

(d) ensure that the person has been informed that they may, at any time and in any manner, withdraw

their request;

(e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in

subsection (1);

(f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph

(e) are independent;

(g) ensure that there are at least 10 clear days between the day on which the request was signed by or on behalf of the person and the day on which the medical assistance in dying is provided or — if they and the

other medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that

the person’s death, or the loss of their capacity to provide informed consent, is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;

(h) immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying;

and

(i) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.

Additional procedural details are set out in the legislation.

In addition, under the legislation, the Ministers of Health and Justice are required to initiate independent reviews into the issues of requests made by mature minors, requests made in advance of loss of capacity, and requests made by individuals with mental illness as their sole underlying condition. The Ministers must initiate the reviews by December 18, 2016 and then must bring the reports from the reviews back before both Houses of Parliament no later than two years after initiation of the reviews.

In the meantime, provincial and territorial governments are developing their responses to the recent changes to the Criminal Code:

Historically, all forms of euthanasia were an offence under s. 241 of Canada’s Criminal Code:

Suicide

Counselling or aiding suicide

241.Every one who

(a) counsels a person to commit suicide, or

(b) aids or abets a person to commit suicide,

whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Charter Challenge — Carter v Canada (Attorney General)

On June 15, 2012, Justice Lynn Smith struck down the Criminal Code prohibition of euthanasia (Carter v Canada (Attorney General), 2012 BCSC 886). She found that it violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Her declaration of invalidity of s.241(b) of the Criminal Code was suspended for twelve months to give the government time to fix the law. The government appealed and Justice Smith’s decision was overturned by the British Columbia Court of Appeal in 2013 (Carter v Canada (Attorney General)). The majority (2:1) allowed the appeal on the grounds of stare decisis (that the issue had been decided by the Supreme Court of Canada in Rodriguez v British Columbia (Attorney General) in 1993). The Supreme Court of Canada heard the appeal on this case in October 2014 and released its decision on February 6, 2015 (Carter v Canada (Attorney General)). The Supreme Court (unanimously and with a decision authored by “The Court”) found that the prohibition on euthanasia violates section 7 of the Canadian Charter of Rights and Freedoms when it prohibits access for “a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” (irremediable, the Court said, means that the condition cannot be alleviated by means acceptable to the person).

The Court’s declaration of invalidity of s.241(b) of the Criminal Code was suspended for twelve months to give the federal/provincial/territorial governments time to revise existing or craft new laws if they chose to do so. However, in October 2015, the Conservative Government was defeated and, in December 2015, the new Liberal Government made a motion for a six-month extension to the suspension of the declaration of invalidity. On January 15, 2016, (Carter v Canada (Attorney General)) the Supreme Court granted a four-month extension, giving the governments an additional four months within which to make any changes to the law. The Supreme Court also established a constitutional exemption under which individuals throughout Canada could access physician-assisted dying without fear of criminal liability for those who assist them by applying to a court for a judicial authorization based on a demonstration that they meet the criteria set out in the 2015 Carter v Canada (Attorney General). The following cases were decided by the courts under the Supreme Court of Canada’s constitutional exemption:

One case was decided after the Supreme Court of Canada’s decision in Carter v Canada (Attorney General) came into effect in June 2016 – i.e., when the prohibitions under the Criminal Code were no longer in effect. In this case, Justice Perrell of the Ontario Superior Court concluded that individuals would still need to seek court orders until federal legislation came into force. Given the introduction of the legislation shortly thereafter, this decision is not being appealed.

Materials from the various levels of court in the Carterv Canada (Attorney General) litigation are available here:

In August 2015, a Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying was created by provincial-territorial governments across Canada. Its mandate was “to provide non-binding advice to participating Provincial-Territorial Ministers of Health and Justice on issues related to physician-assisted dying. The advice is meant to assist provinces and territories in deciding what policies and procedures should be implemented within their jurisdictions in response to the Supreme Court’s decision in Carter.” The Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying delivered its final report on November 30, 2015. It made 43 recommendations for how federal, provincial, territorial governments (and other relevant actors) should implement a regulatory framework for physician-assisted dying in Canada.

In December 2015, a Special Joint Committee on Physician-Assisted Dying was appointed by Parliament. Its mandate was “to review the report of the External Panel on Options for a Legislative Response to Carter v. Canada and other recent relevant consultation activities and studies, to consult with Canadians, experts and stakeholders, and make recommendations on the framework of a federal response on physician-assisted dying that respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians.” The Special Joint Committee delivered its final report on February 25, 2016. It made 21 recommendations for a regulatory framework for medical assistance in dying and related initiatives.

On April 14, 2016, the federal Minister of Justice introduced Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).

Bill C-14 was subjected to extraordinary debate in both the House and the Senate. Links to the speeches made in the House and the Senate are here.

Is euthanasia legal elsewhere in the world?

Yes. Click on a country below for a description of its permissive stance re: euthanasia. Here we have excerpted the description from Justice Smith’s decision in Carter v Canada (Attorney General) as her descriptions are the result of evidence being presented by experts and tested in a court of law. We have also included links to official government sources for legislation and data.

On February 13, 2014, the Belgian House voted to reform the 2002 euthanasia legislation (the reform had been approved by the Senate in December). The reform permits euthanasia for mature minors in a narrow set of circumstances and under certain conditions (“in a medically futile condition of constant and unbearable physical suffering that cannot be alleviated and that will result in death in the short term, and that results from a serious and incurable disorder caused by illness or accident”; with the fully informed agreement of the minor’s legal representatives; and after a child psychiatrist or psychologist has certified in writing that the minor is a mature minor).

Click here for an unofficial translation of the Law of 28 May 2002 on Euthanasia, amended by the Law of 13 February 2014.

Switzerland does not have legislation that decriminalizes assisted suicide. Rather, Article 115 of Switzerland’s Penal Code, SR 311.0 states that “any person who for selfish motives incites or assists another to commit or attempt to commit suicide is, if that other person thereafter commits or attempts to commit suicide, liable to a custodial sentence not exceeding five years or to a monetary penalty”. Therefore, assisted suicide is not a criminal offence where the assister lacks a selfish motive.

Does legalization of euthanasia have a negative impact on availability or quality of palliative care?

In answering this question, we present the findings of Justice Smith in Carter v Canada (Attorney General) and the National Assembly of Quebec Select Committee on Dying with Dignity as these findings are the result of evidence being presented by experts and tested in a court of law (Justice Smith) or presented by experts in Canada and in the permissive regimes to an all-party committee of parliamentarians (Quebec Committee).

Reliable evidence does not support the claim that legalization of euthanasia has a negative impact on either availability or quality of palliative care. The evidence does not demonstrate a reduction in availability or quality of palliative care post-legalization. Furthermore, availability and quality of palliative care are better in some countries that permit euthanasia than in others that prohibit assisted suicide. For example, Belgium and the Netherlands rank higher than Canada for quality end-of-life care.

After reviewing evidence relating to the relationship between legalizing assisted suicide and the quality and availability of palliative care, Justice Smith for the Supreme Court of British Columbia made the following remarks:

My review of the evidence regarding Oregon, the Netherlands and Belgium suggests that in those jurisdictions, legalization of assisted death has not undermined palliative care; on the contrary, palliative care provision has improved since legalization by some measures.

Few conclusions, however, can be reached about the possible impact on palliative care from a change in Canadian law regarding physician-assisted death.

First, as Canada points out, palliative care is a developing field; it may be assumed that it is improving not only in permissive jurisdictions but also in jurisdictions that continue to prohibit physician-assisted death.

Second, there are differences in the history, culture and modes of medical practice among the jurisdictions.

Third, further improvements in palliative care in Canada would require commitment of public resources, since health care in Canada is largely delivered through a public system. Some of the debate in the United States has raised the question whether health insurers would refuse to fund palliative care when assisted death was available; no evidence was provided to show that that fear has become reality in Oregon or Washington. It is difficult to imagine that Canadian politicians, public officials or health care providers, if physician-assisted death were legal, would reduce resources for palliative care services for that reason.

In summary, having reviewed the evidence and the submissions on this point, I conclude that while a change in the law to permit physician-assisted death could affect the palliative care system, predictions as to how would be speculative. I find that the evidence establishes that the effects would not necessarily be negative. (at 731-736)

For Justice Smith’s full discussion of evidence on the quality of and access to palliative within jurisdictions that permit euthanasia, click here.

Similarly, in addressing the concern that the practice of euthanasia could hinder the development of palliative care, in its Report the National Assembly of Quebec Select Committee on Dying with Dignity found that:

Legitimate as this fear may be, this has not yet happened in the European countries where euthanasia has been legalized. Perhaps surprisingly, the exact opposite has occurred. The legalization of euthanasia has boosted the development of palliative care. The social consensus was to openly accept this practice as long as palliative care was accessible to more patients. Consequently, Belgium and the Netherlands have quality palliative care, much of which is offered at home. (at 69)

The conclusion that legalizing euthanasia will not lower the quality of or access to palliative care finds further support in data recently published in two reports:

“The Quality of Death: Ranking end-of-life care across the world“, a 2010 report produced by the Economist Intelligence unit offers an overall ranking of the quality of end-of-life care across forty countries. Belgium and the Netherlands respectively ranked higher than Canada in the report’s overall ranking of end-of-life care services. This report was updated in 2015 and is available here.

“Palliative Care Development in Countries with a Euthanasia Law“, a 2011 report authored by the European Association for Palliative Care for the United Kingdom Commission on Assisted Dying, investigates the impact that legalizing assisted suicide and/or euthanasia has had upon the development of palliative care in Belgium, the Netherlands and Switzerland, where assisted suicide and/or euthanasia has been legalized. Based on an analysis of available data, this report suggests that palliative care appears to be developing within the Netherlands, Belgium and Switzerland at a rate comparable to that of other European countries where assisted suicide and euthanasia are not legal. From a review of relevant scientific literature, the report also suggests that the quality of palliative care within the Netherlands and Belgium after the legalization of assisted suicide and euthanasia has remained comparable to the quality of palliative care available within European countries where assisted suicide and euthanasia remain illegal.

Does legalization of euthanasia put vulnerable people at heightened risk of non-voluntary or involuntary euthanasia?

In answering this question, we present the findings of Justice Smith in Carter v Canada (Attorney General), the National Assembly of Quebec Select Committee on Dying with Dignity, and the Royal Society of Canada Expert Panel on End-of-Life Decision Making as these findings are the result of evidence being presented by experts in Canada and in the permissive jurisdictions to an all-party committee of parliamentarians (Quebec Committee), or reviewed by a panel of experts (Royal Society of Canada Panel).

Reliable evidence supports the conclusion that legalization of euthanasia does not put vulnerable people at heightened risk of non-voluntary or involuntary euthanasia. In the Carter case, Justice Smith of the British Columbia Supreme Court made the following remarks on this point:

I have considered the study, the critique and the cross-examinations, as well as other evidence (such as that of Ms. Jackson, Dr. Bentz and others) bearing on whether the experience in Oregon and the Netherlands supports the fears of those who argue that the availability of consensual assisted death will lead to the imposition of assisted death on vulnerable persons. (at 666)

I accept that the conclusions stated in the Battin et al. Study are soundly based on the data. I find that the empirical evidence gathered in the two jurisdictions does not support the hypothesis that physician-assisted death has imposed a particular risk to socially vulnerable populations. The evidence does support Dr. van Delden’s position that it is possible for a state to design a system that both permits some individuals to access physician-assisted death and socially protects vulnerable individuals and groups. (at 667)

I accept that elderly persons are vulnerable to abuse and that the assessment of voluntariness of elderly people must incorporate an understanding of that reality. As discussed earlier, however, there is no evidence that the elderly access physician-assisted dying in disproportionate numbers in permissive jurisdictions (Professor Battin, Dr. Ganzini, Dr. van Delden, Professor Deliens), and Professor Deliens observed that the number of patients over the age of 80 whose deaths resulted from LAWER in Belgium was not disproportionate. (at 847)

However, there is no evidence that persons with disabilities are at heightened risk of accessing physician-assisted dying in jurisdictions where it is permitted. … (at 852)

My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced. (at 883)

For a full discussion from Justice Smith on the issue of whether legalizing euthanasia puts vulnerable people at risk, click here.

For a the Select Committee’s full discussion on this point, click here.

Similarly, The Royal Society of Canada Expert Panel on End-of-Life Decision Making reviewed evidence from permissive jurisdictions concerning the relationship between euthanasia and protecting the vulnerable, and in its Report concluded the following:

In sum, there is no evidence from the Netherlands supporting the concern that society’s vulnerable would be at increased risk of abuse if a more permissive regime were implemented in Canada. ( at 89)

Despite the fears of opponents, it is also clear that the much-feared slippery slope has not emerged following decriminalization, at least not in those jurisdictions for which evidence is available. Nor is there evidence to support the claim that permitting doctors to participate in bringing about the death of a patient has harmed the doctor/patient relationship. What has emerged is evidence that the law is capable of managing the decriminalization of assisted dying and that state policies on this issue can reassure citizens of their safety and well-being. (at 90)

For the Royal Society of Canada Expert Panel’s full discussion of the issue of whether the legalization of euthanasia puts vulnerable people at risk, click here.